[31] The making of the order does not alter or affect the entitlements of Mr Pirone arising by virtue of or attributable to past events. It assumes the existence of those entitlements, but now terminates them and transfers them, or an entitlement to an amount equal to their value, to the Commonwealth."
35 It is plain that the Act undoubtedly manifests a statutory intention to modify or abolish the defendant's property rights in the employer superannuation contributions or benefits of which he presently stands possessed. In general terms it does so in clear and unambiguous language. The question is whether or not when one descends into an examination of the particular periods of the defendant's employment, and compares those periods with the date of commission of the corruption offences, there remains an intention to deprive the defendant of contributions and benefits paid during all three periods that is expressed with "irresistible clearness".
36 The second reading speech is of limited utility having regard to what was said by the Court of Appeal in Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380; at [12]-[14]. However, as appears from what is recorded above, on the introduction of the original bill the Minister spoke in terms of "a strong financial disincentive to any who may be tempted to engage in corruption". This was the purpose or mischief to which the proposals were directed. The speech also referred to the fact that "[t]he government view[ed] corruption of office as a failure to fulfil a condition of employment which should result in the disentitlement to publicly funded superannuation benefits". It should be recalled that the definition of "corruption offence" includes an offence by a person who was an employee at the time when it was committed, being an offence whose commission involved an abuse by the person of his or her office as such an employee.
37 It is patent that the defendant did not relevantly fail, during either of the first two periods of his employment with the ADF, to fulfil a condition of his employment. In the same way, even though the defendant was an employee when the corruption offences were committed, they were not committed at a time when the defendant was an employee in either of the first two periods. It may be assumed as a matter of timing and theory, if not of causation, that the defendant by definition during the first two periods of his employment succumbed to or was influenced by the "strong financial disincentive" to commit any relevant offences. The defendant quite simply did not during the first two periods of his employment commit any offence that involved a failure to conform to his conditions of employment or that involved an abuse by him of his office as such an employee during those periods.
38 The abuse of office in this case occurred during the final period of employment. That was the period during which the objects and purposes of the Act necessarily come into play. In colloquial terms, the defendant ought not be permitted to hold out one hand to receive his employer's contributions to his superannuation fund whilst simultaneously committing a fraud upon that employer with the other hand. The same cannot be said of the contributions and benefits received by the defendant from the Commonwealth during the times when his conduct as an employee was without fault.
39 In my opinion the Act does not in this last and particular respect speak with "irresistible clearness". Nothing said by Doyle CJ in DPP v Pirone leads me to hold a different view. If the intention to modify or abolish the defendant's fundamental rights or freedoms must arise by necessary implication from the terms of the statute, it has not in my view done so in the present case in a way that would extend to and therefore permit the interference with his employer's superannuation contributions and benefits that were made, and to which he became entitled, during any period or periods of faultless employment. I am comforted in this conclusion by the words of Stephen J in Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1979] HCA 67; (1979) 143 CLR 499 at 508-509 as follows:
"As Danckwerts LJ reminds us in Allen v Thorn Electric Industries Ltd [1968] 1 QB 487 at 505, a construction of a statute which interferes with the legal rights of the subject to a lesser extent and produces the less hardship is to be preferred to another, having the opposite effect; and see per Winn LJ [1968] 1 QB 487 at 509; and also Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343 at 359."
Conclusions
40 I consider that the plaintiff has established that a superannuation order should be made against the defendant. However, I am of the opinion that such order should be limited to the employer contributions or benefits made by the Commonwealth during the defendant's period of employment with the ADF between 21 June 1999 and 10 August 2008.
Orders
41 I indicated to the parties during the course of argument that it would be necessary to revisit the statements pursuant to s 18(4) of the Act that were tendered in the proceedings. The passage of time since I reserved my decision will by now have caused the sums and calculations reflected in those statements to be out of date.
42 I can indicate that having regard to the relief sought in the amended statement of claim I propose to make the declarations as asked for in paragraphs 1, 2 and 3. Subject to what follows I also propose to make orders as asked in accordance with paragraphs 4 to 7 inclusive of that document. However, before doing so I would request the parties to bring in draft short minutes of order setting out the amounts that I am required by the Act to specify in the light of the foregoing reasons, which reflect the calculations and contain the amounts as at the date of my orders. In those circumstances I will list this matter for that purpose on some date convenient to the parties and to the Court to be arranged in consultation with my Associate.